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Brawer v. Horowitz

decided: May 12, 1976.

ALFRED BRAWER & RALPH IGNOMIRELLO
v.
JAY S. HOROWITZ & SALVATORE L. MAUCELI, RALPH J. IGNOMIRELLO, APPELLANT IN NO. 75-1907 ALFRED BRAWER & RALPH IGNOMIRELLO V. JAY S. HOROWITZ & SALVATORE L. MAUCELI, ALFRED BRAWER, APPELLANT IN NO. 75-2003



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Civil Action No. 74-1448)

Aldisert, Gibbons and Rosenn, Circuit Judges.

Author: Aldisert

Opinion OF THE COURT

ALDISERT, Circuit Judge.

The question for decision is whether the district court erred in dismissing a complaint that alleged a federal prosecutor and a cooperating witness had conspired to use perjured testimony and to conceal exculpatory evidence in order to convict appellants. The lower court held that both the prosecutor and the witness were immune from civil suit and, therefore, dismissed the complaint for failure to state a claim upon which relief could be granted. We held these appeals pending the Supreme Court's decision in Imbler v. Pachtman, 424 U.S. 409, 96 S. Ct. 984, 47 L. Ed. 2d 128, 44 U.S.L.W. 4250 (1976). We now affirm.

I.

Appellants Brawer and Ignomirello were tried and convicted in the Southern District of New York of transporting stolen United States Treasury Bills and of conspiring to do so. 18 U.S.C. §§ 2, 371, 2314; see United States v. Brawer, 482 F.2d 117 (2d Cir.), on remand, 367 F. Supp. 156 (S.D.N.Y. 1973), aff'd 496 F.2d 703 (2d Cir.), cert. denied, 419 U.S. 1051, 95 S. Ct. 628, 42 L. Ed. 2d 646 (1974). Prior to trial, appellee Mauceli pleaded guilty to a charge of conspiring to transport the stolen securities; he testified for the government; after trial, he was sentenced and ultimately placed on probation for two years. 482 F.2d at 121 n.5. Appellee Horowitz was the prosecuting Assistant U.S. Attorney.

In September 1974, after the Second Circuit affirmed their convictions, appellees filed a civil complaint in the District Court for the District of New Jersey. They alleged that Horowitz and Mauceli had conspired with "divers other persons unknown to plaintiffs" "to injure, oppress and procure the convictions of plaintiffs with the knowing use of false and perjured testimony, and to deprive plaintiffs . . . of their rights to a fair and untainted trial secured and guaranteed to them by the due process clause of the Fifth Amendment . . . as well as by the Civil Rights Act, 42 U.S.C.A. §§ 1985(2), 1986."*fn1 Appellants sought money damages from Mauceli only; they also asked that their convictions be set aside as having been unconstitutionally obtained.

Horowitz filed a timely motion to dismiss the complaint for want of personal and subject matter jurisdiction and for failure to state a claim. At the conclusion of an ex parte hearing,*fn2 the district court found that "at all times relevant to the allegations in the Complaint defendant Jay S. Horowitz was acting in his capacity as Assistant United States Attorney and was immune from suit." Civ. Action No. 74-1448 (D. N.J. Jan. 16, 1975). Accordingly, the court entered summary judgment in the prosecutor's favor. Upon motion and after concluding that appellants might not have had sufficient time in which to respond to Horowitz' motion to dismiss, see Potter v. McCall, 433 F.2d 1087 (9th Cir. 1970) (per curiam), the court vacated its order. Ultimately, however, the court reaffirmed its initial ruling on Horowitz' immunity. Civ. Action No. 74-1448 (D. N.J. June 11, 1975).*fn3

Meanwhile, Mauceli had failed to answer the complaint timely and defaults were entered against him in December 1974. F.R. Civ. P. 55(a). Appellants then moved the district court to enter a default judgment as to Mauceli. F.R. Civ. P. 55(b). In February 1975, the United States responded on behalf of Mauceli with a motion to dismiss. Appellants moved to disqualify the United States; Mauceli countered with an affidavit, reciting in part that he had never received notice of the motion for a default judgment against him and that, in any event, he had been absent from the country for a short time "arranging my relocation under a new identity, with the assistance of the United States Government." In its June 1975 opinion, the district court held that the United States had legal authority to represent Mauceli,*fn4 28 U.S.C. § 517, and that Mauceli's alleged actions were cloaked with "absolute quasi-judicial immunity."

Thus, the district court dismissed the complaint as to both defendants with prejudice and without costs. These appeals, timely noticed, followed. We have jurisdiction pursuant to 28 U.S.C. § 1291.

II.

Imbler v. Pachtman, supra, held that a state prosecutor is absolutely immune from a civil suit for damages under 42 U.S.C. § 1983*fn5 where the allegations of constitutional deprivation relate solely to his initiating a prosecution and presenting the case, i.e., to his role as an advocate. 44 U.S.L.W. at 4257. This case is slightly different. Horowitz was a federal prosecutor, so this case is a Bivens-type action,*fn6 rather than a § 1983 claim. Also, the relief sought against Horowitz was not money damages, but the setting aside of the convictions.*fn7 Notwithstanding these distinctions, in considering the immunity of Horowitz vel non we properly may look to § 1983 cases.*fn8 Paton v. La Prade, 524 F.2d 862, 872 (3d Cir. 1975). Accordingly, we focus on Imbler.

We have reviewed the policy considerations underlying the immunity accorded in Imbler, 44 U.S.L.W. at 4254-56. We believe that different rules should not obtain for federal prosecutors sued on a Bivens theory and for state prosecutors sued under § 1983. The policy considerations are exactly the same in each case. Accordingly, we hold that a federal prosecutor is absolutely immune from suit where the allegations relate solely to his initiating and presenting a criminal case. The allegations of the complaint implicating Horowitz all related to actions in his role as an advocate, rather than as an administrator or investigator. See Imbler, supra, 44 U.S.L.W. at 4257 & n.33. Thus, the district court did not err in holding Horowitz immune from this suit and dismissing the complaint as to him for failure to state a claim.

III.

Before considering whether the district court properly dismissed the complaint as to Mauceli, we must determine whether the trial court erred in reaching the issue of Mauceli's immunity. The district court ruled that the United States had legal authority to represent Mauceli's interests. We agree.

Appellants' argument is multifaceted. First, they argue that the Department of Justice possesses no statutory or regulatory authority to represent a nongovernment defendant in a civil case. This ...


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